Mega constitutional questions in Myanmar

The coup in Myanmar as thrown up a whole lot of mega-constitutional questions.

Some of the big ones include: was the Constitution ever legitimate in the first place? Who gets to have the final say on the Constitution? Has the military actually followed the Constitution, as it claimed? And, to what extent can the Constitution or the courts be used as a way out of this crisis?

I’ll deal with these in turn, along with a few others. Apologies, this is a long post.

Was the Constitution ever legitimate in the first place?

In my book, The Constitution of Myanmar, I argue that the Constitution faces a crisis of credibility. I suggest this is for two reasons – process and substance. The process of drafting the Constitution was fundamentally flawed. Much has been written on this, but it includes the failure to acknowledge the results of the 1990 elections, the control over a constitution-making process that lasted from 1993-2007, and the 2008 referendum despite the tragedy of Cycle Nargis. What I mean is that the origins of a constitution – how and under what conditions it was made, who participated, how it was approved – contribute to the credibility of a Constitution. (see here for thoughts on the absence of genuine public participation as a striking feature of constitution-making in Southeast Asia)

The substance of the Constitution in Myanmar is the other reason that it faces a legitimacy crisis. Again, much has been said about its undemocratic nature. In my book I suggest there are three key logics evident – a leading role for the military, an ideology based on the Three Main National Causes, and an organising logic of coercive centralism. The core of the Constitution – from entrenched military seats in parliament to the highly dependent nature of the relationship between the Union and states/regions – is contrary to the basic demands for constitutional reform that focus on democracy and federalism.

In fact, as I argue in a more recent article, the Constitution can be understood as a form of ‘pre-emptive constitution-making’ (apologies this is stuck behind a pay wall, please contact me for a copy). The military’s purpose in drafting the Constitution was precisely to avoid a complete transition to democracy.

Did the Constitution help build a culture of constitutionalism in Myanmar?

Well, it depends how you look at it. By a culture of constitutionalism I mean a shared way of interpreting the Constitution that leads to generally accepted practises of implementing and working within the Constitution.

In my book, I argue that the legislature was the primary forum for debate and discussion over the meaning of the Constitution and that the courts have not played a major role.

This was for three main reasons: one, the lack of cases brought to the Constitutional Tribunal hampered any possibilities for a leading role for this institution due to its restrictive standing rules and design; two, the self-imposed restrictions on the Constitutional Tribunal such as not being able to review laws pre-2011; and three, because decisions that it did make were not respected by the legislature, leading to questions about whether its decisions were final and binding.

The absence of a final interpreter of the Constitution frequently created problems.

Another problem is that this Constitution was intended to be the final word. As I suggest in my book, it is a codified constitution (p8). By this I did not simply mean it is a written constitution. Rather, I mean that the Constitution seeks to codify pre-existing principles rather than abolish past law (or in this case, past military practise). The Constitution is extremely long, a bit like its distant cousin, the Indian Constitution. It is very detailed and contains matters that would usually be considered less important and ok to leave to the legislature. Rather than give power to the legislature to make laws or to the executive to regulate, the details are mapped out in the Constitution.

Who gets to have the final say on the Constitution?

This is the biggest problem with the current crisis. What is actually happening is the military is claiming to be the institution that has the final say on the interpretation and application of the Constitution. The military has no such powers.

The Constitution does give it the power to safeguard the Constitution (section 20f). This is of course a strange and unusual provision of the Constitution. A Constitution has no need for protection by a military. A military has no role in safeguarding the Constitution.

Section 20F does not give the military the power to interpret the Constitution or enforce its rules. That is the responsibility of the Constitutional Tribunal.

Of course, one problem is the lack of regard for the Constitutional Tribunal itself (for more on the Tribunal see here ).

Another issue is the lack of a shared constitutional tradition of interpretation. As I have explained in my book (p170), a review of cases decided by the Tribunal suggests that there is no dominant approach to deciding and interpreting constitutional cases.

I suggest that there have been at least three approaches that have been taken by the Constitutional Tribunal: a literal approach, a nationalist approach and a restorative approach (see ch 8) (skip this section if you are not interested in constitutional interpretation):

The literal approach to constitutional interpretation treats law as black and white text, clear and unambiguous. This is not originalism, as some foreign scholars have suggested, but rather a continuation and mirroring of the approach to law adopted during the periods of socialist-military rule. In this conception, judges presume the law is clear and undertake a role like that of administrators.

The second approach is a nationalist approach, where the Tribunal reads the Constitution in a way that emphasises the rights of official national races to the exclusion of outside groups. The nationalist approach to interpretation is both about the choice of an interpretation that will enhance the outcome for national races but also about the insistence of adopting an ethno-nationalist lens to the interpretation of the Constitution. For example, in the Ministers of National Races Affairs case, the Tribunal found that these ministers are equal in status to other ministers, even though this does not appear to have been anticipated in the Constitution (see Chapter 7). Another example of the nationalist approach is the Citizenship case, in which the Tribunal read the word ‘person’ restrictively to mean associate or naturalised citizen, and not a temporary identity card holder (see Chapter 4). This was an anti-rights case, in the sense that the applicants were arguing (contrary to past political practise) that the right to vote in a constitutional referendum (and by implication, elections) should only be given to citizens, and not to groups with temporary identity cards such as the Rohingya. In both these cases, the Tribunal’s decision reflects populist ethno-nationalist sentiment and arguably goes beyond the plain wording of the Constitution or the intention of the constitution-drafters.

The third approach to constitutional interpretation has been to return to the 1947 Constitution and the principles of interpretation that were expounded by the Supreme Court at that time. This mode of interpretation is a form of ‘restorative jurisprudence’, that is, the Tribunal adopts a past approach to interpretation (restoring past jurisprudence) under a previous court and constitutional era. This is a revivalist approach to constitutional law, involving the adaptation of past constitutional principles under a former constitution to an entirely new constitutional context. This approach was evident in a case in 2017 where the Tribunal deliberately turned back to principles of statutory and constitutional interpretation of the 1950s, citing jurisprudence of the former Supreme Court of Burma. The Tribunal used past jurisprudence to emphasise that the Constitution should be given an expansive and not a restrictive meaning. It did so in order to find that legislative committees could be formed by the Pyidaungsu Hluttaw, even though this is not mentioned in the Constitution. This demonstrates a willingness on the part of the Tribunal to draw on the history of constitutional law to attempt to forge a new jurisprudence in Myanmar beyond the literal or nationalist approach. This was significant because the applicants were 50 military representatives, and so the Tribunal indicated that it is willing to rule against military legislators.

There are many reasons for these varied approaches, or a lack of a dominant approach to interpretation. The 2008 Constitution came after two distinct periods of rule without a constitution. This means there is a need to rebuild a culture of constitutional interpretation.

Further the Constitution is a patchwork of ideas from three main sources: one, the 1947 Constitution, two, the 1974 Constitution, and three, military propaganda and ideas from the 1990s. For this reason, I suggest the Constitution dates from the 1990s, rather than from its inception in 2011. But this patchwork of constitutional ideas complicates how we understand the Constitution as it does not fall neatly within any one constitutional tradition. This is precisely the difficulty with hybrid constitutions.

What were the constitutional issues in the lead up to the coup?

The legality of refusing to convene a special session of the Pyidaungsu Hluttaw

On 11 January 2021, the military called on the Speaker to convene a special session of the Pyidaungsu Hluttaw, the joint legislative body, under Section 82 of the Constitution. Its petition was supported by 160 military members, 36 Union Solidarity and Development Party members and several minority party members. 

The Constitution requires support from one fourth of members of parliament to convene such a special session (section 84). It is open-ended as to what matters can be brought to the Pyidaungsu Hluttaw (section 80), but the President has the power to request the Speaker to convene a session.

The President declined to convene a session because disputes concerning the elections should be handled by the Election Commission, not by Parliament.

The military could not bring impeachment proceedings against the Election Commissioners because the power to do so lies with the president (section 400a).

The role of the Commander in Chief, when he has to resign and who gets to appoint the next one

The other looming constitutional issue prior to the election was the future of the Commander-in-Chief of the Myanmar Armed Forces, Min Aung Hlaing. He is 64 years old and according to law must retire from his post once he turns 65 mid-year.

If the intention was for Min Aung Hlaing to continue in this office, the military could have amended the law to extend the age limit to 70 years old. The coup suggests that his ambitions go far beyond the office of Commander in Chief.

If Min Aung Hlaing had willingly retired this year, the president has the power to appoint the commander-in-chief in consultation with the National Defence and Security Council (NDSC) (section 342). It is unprecedented for a civilian president (with no prior military background) to have the opportunity to initiate the selection process for the commander-in-chief in Myanmar. This has been missing from much analysis of the situation.

Again, this was another reminder to the military that without control of the office of the president, their powers are limited.

Attempts to bring a writs case against the Election Commission and President in the Supreme Court

In the lead up to the coup, other constitutional issues were raised in the Supreme Court. Several petitioners sought the writ of quo warranto, a constitutional remedy that challenges a person’s right to take office (section 378a(4)).

The cases appear misplaced as they were all brought against the wrong people — the Election Commissioners and the President. The cases should have been brought against a person who won office at the election and whose right to take office they sought to challenge.

It was uncertain whether the Supreme Court could accept the cases because the Constitution declares that decisions of the Election Commission are final (section 402). Hearing the cases would potentially amount to challenging a complaint that had been brought to the Election Commission.

The Chief Justice of the Supreme Court is a former military officer. Despite these connections, the military chose not to wait for the outcome of a Supreme Court case.

These are just some of the key constitutional issues before the coup, but the events of 1 February raise further constitutional questions.

Has the military actually followed the Constitution, as it claimed?

Before I answer the question, its useful to remember that constitutional powers have been used before in Myanmar. There are three types of emergencies under the Constitution. Constitutional emergency powers have been used within the limits set by the Constitution before in Myanmar.

Under president Thein Sein, who was in office from March 2011–2016, a constitutional state of emergency was declared at least three times — in response to anti-Muslim violence in Rakhine State and Meiktila, and fighting in the Kokang area between government and Kokang insurgent forces. In these instances, it was the powers under section 412 and 413 (a) (what I have elsewhere referred to as ‘type 2’ emergencies) that were used.

The effect of this type of emergency on human rights is that the President has ultimate power to ‘restrict or suspend’ any right (section 414(b)). The President is required to specify the time period, although the default is 60 days because any declaration requires the approval of the Hluttaw within this time.

This type of emergency was declared in 2012 in Rakhine State, and in Meiktila District in 2013. On 10 June 2012, this power was first exercised by the President who declared a state of emergency in Rakhine State. Violence against Muslims spread across the country, leading to a humanitarian crisis and widespread displacement.

In the following year, severe conflict against Muslims in Meiktila broke out and led to an emergency administrative response. On 22 March 2013, the President exercised his powers to declare a state of emergency in four townships in Meiktila District, although no time limit was specified.

On 20 May 2013, a special session of the Union Parliament was held to debate the extension of the declaration of the state of emergency in Meiktila. There are no legislative checks on the initial act of declaring an emergency, although the Pyidaungsu Hluttaw is required to approve an extension of a state of emergency within 60 days.

No grounds are specified as to the conditions that must be fulfilled to extend an emergency. The key debate that emerged was how long the extension should last. The issue was whether it should remain open-ended as the President had proposed, or whether it should be subject to a 60-day time limit. The majority voted in favour of a 60-day time limit, which indicates that some members of parliament from the Union Solidarity and Development Party, the military-backed political party, voted against the proposal of the President.

On 20 July 2013, the state of emergency in Meiktila was official brought to an end by the president.

In 2015, the president declared a constitutional state of emergency in the response to fighting in Kokang Self-Administered Zone in Shan State, bordering China.

This is the way constitutional emergency powers should work. These powers need to be exercised by the right people, under the right circumstances and according to the right procedure as set out in the Constitution.

So, to return to my question, is the military’s claim to be using emergency powers really constitutional?

The military claims it is acting lawfully under sections 417 and onwards of the Constitution. But there are many problems with this claim. 

Even if the military had evidence of voter fraud, it is not self-evident that election fraud constitutes an emergency. The Constitution suggests that an emergency is an extraordinary situation that poses a grave threat to the country (section 417). This is the kind of question you need a Constitutional Tribunal for (ie what constitutes an emergency according to the Constitution?)

The President was the only person empowered to declare a state of emergency in coordination with the NDSC. The Vice-President, ex-general Myint Swe, became the acting President, although there is no evidence that the President willingly left office. The Constitution does not allow the military-backed vice-president to replace the president at whim. Reasons are required such as incapacity or death (section 73(a)).

The provisions on the presidency falling vacant also presume that there is still a civilian elected government in office (ss 73(b-f)).

There was also no possibility that a meeting of the NDSC occurred. The Constitution mandates that its members include civilian office holders like the president, minister of foreign affairs and speakers of the two houses of parliament (section 201). It appears that the military has reconstituted the Council with only its military members left, using unconstitutional means to declare a constitutional emergency.

In effect, the Commander in Chief has jumped to section 419, without going through the right processes to get there.

Its also worth noting, to go back to my first point, that the substance of the Constitution contributes to its lack of credibility. The chapter on emergency powers was already one of the most inappropriate, convoluted and poorly drafted sections of the Constitution. Ive tried to distil it here. The immunity clause in section 432 is a case in point, but that’s just one of many problems with this chapter.

But, to what extent can the Constitution be used as a way out of this crisis? Are the courts of any help?

The Constitution provides for the writ of habeas corpus, which should in theory be available to challenge the detention of Aung San Suu Kyi and others. Of course, the problem is that in times of constitutional emergency (if this is a section 417 emergency), the writ remedies do not appear to apply (section 296(b) and 379).

The Constitutional Tribunal again could be helpful here to decide on issues like – how do we reconcile the differences in the wording of section 296 (b) and section 379? Do the writs not apply in any emergency, or only in some kinds of emergencies?

The only option here is to fall back on Myanmar as a common law legal system. What I mean is, even if the constitutional writs are not available, the common law still exists and it is arguable that courts can still issue habeas corpus based on the common law.  But as Ive shown elsewhere (here and here), reference to the common law is often more talk than substance. The common law is often translated as ‘Ingaleik Ubade’ or English law, which hints at the misunderstanding. As Ive tried to explain many times, the common law, as it is understanding by a global audience, is in fact law made by judges. It’s the understandings and conventions and decisions about law that are confirmed through court processes. Yet in Myanmar, the common law is often non-existent.

What else are we likely to see happen from here legally? What is section 144?

Section 144 powers have been a favourite of the regime for a long time. If the military plans to impose curfews on people, or revise the existing section 144 orders that continue in some places due to covid 19, it will use section 144 powers. Ive written about section 144 powers here, here and shorter comments here.

In brief, while this is supposed to be an order approved by a judge, the military claims this power was transferred to the General Administration Department.

That’s all for now, I may update or revise this as the situation changes

For those interested, the Burmese version of the book, The Constitution of Myanmar, is available here